Friday, March 14, 2008

Pity the Poor Misunderstood Mediator

I have been thinking some about the American Bar Association's Section of Dispute Resolution Task Force on Improving Mediation Quality report, which I have reviewed in prior posts. Boiling things down a bit, the most interesting finding is that, generally, users want mediators to be more active, prepared and willing to venture from facilitator to evaluator. Maybe there is a fundamental misunderstanding among users concerning the role of the mediator in the practice of the art of mediation.

Of course mediators are more than willing to be active, but mediators are sensitive to the risk of being too active, which would impinge upon a central tenet of mediation, party self-determination.

Likewise, mediators are professionals who enter mediations having read party submissions and prepared with an understanding of how the clients have described the conflict. Mediators also often have subject matter expertise that they can bring to bear to provoke a thoughtful consideration of issues raised by the conflict. But mediators understand the risk that that they can be over-prepared. Mediation is, in many ways, a performance piece in which the parties themselves are the central actors. It is the performance, the give and take of the actual negotiation, which yields the settlement, and mediators should not rely too much on papers prepared in advance by the parties. These papers are still "fight" pieces prepared by the parties in advocacy mode before the mediation begins, and the mediator does not want these position papers to take a greater importance than the clues and openings that can be summoned once the negotiating process begins. Pre-mediation papers are never prepared in a collaborative manner, and I can't tell you how many times I have received feeble attempts to comply with my request to set forth in these papers a confidential statement of what a party would accept as a reasonable compromise.

As for facilitative versus evaluative modes of mediations, I find that I try to do what I think the mediation needs. Mostly, I facilitate, using whatever techniques I can think of to get parties to think in terms of solving a joint problem, as opposed to winning a joust (yes, even stupid mediator tricks). But here's the key for me: I tend to find that the surest sign that I am floundering in a mediation is when I start to become more evaluative. When I offer my evaluations, or succumb to the request to provide them, I am forcing the mediation, trying to accelerate movement, not focusing on the parties' interests and objectives enough to help the parties recognize and claim common ground.

So pity the poor misunderstood mediator who is just trying to be a mediator, and not a hero.

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